Texas & P. Ry. Co. v. Baker

(after stating the facts as above). It is insisted that the third and fourth paragraphs (set out in the statement above) of the trial court's charge to the jury were erroneous

"in that in said charge liability is imposed upon the defendant if it knew, or in the exercise of a high degree of care could have known, of the presence of white passengers in the colored coach, in that said charge makes a violation of the separate coach law as applied to a case of this kind negligence per se, and makes a violation of the separate coach law the proximate cause of plaintiff's wife's injuries without reference to whether or not defendant could have anticipated and prevented the assault."

It was not contended by appellee that appellant had failed to comply with the provision in the "separate coach law" which required it to provide separate coaches and compartments for the accommodation of white and negro passengers. The contention was that appellant, having complied with the requirement of the law in that respect, failed to comply with the provision thereof in article 6753, Vernon's Statutes, which required it to remove therefrom white passengers it unlawfully permitted to enter the coach it had provided for negro passengers. Said article 6753 is as follows:

"Conductors of passenger trains, street cars, or interurban lines, provided with separate coaches, shall have authority to refuse any passenger admittance to any coach or compartment in which they are not entitled to ride under the provisions of this law; and the conductor in charge of the train or street car, or interurban car, shall have authority, and it shall be his duty, to remove from a coach or street car, or interurban car, any passenger not entitled to ride therein under the provisions of this chapter, and upon his refusal to do so knowingly shall be punished as provided in the Penal Code of this state."

The fact that the duty of enforcing a compliance with the requirement of the law was imposed upon its conductor did not relieve appellant of liability for the consequences to a passenger of a failure to separate white and negro passengers. The duty was imposed upon the conductor as such and not otherwise. Railway Co. v. Ritchel, 148 Ky. 701, 147 S.W. 413, 41 L.R.A. (N. S.) 958, Ann.Cas. 1913E, 517. In the case cited the Supreme Court of Kentucky, with reference to a statute not materially different from our own, said:

"The whole purpose of the separate coach law is to require a carrier not only to provide separate coaches for colored and white passengers, but to see that the law is made effective by assigning the passengers to the coaches to which they belong. While it is true that the statute imposes a penalty on the conductor for a failure of duty in this respect, this in no wise relieves the carrier of its responsibility under the law. In making the conductor liable to a fine for failure of duty, the purpose of the lawmakers was to render the act more effective. The duty of assigning passengers to the proper coaches is not imposed upon the conductor individually, but is imposed upon him as the conductor of the train. In other words, it is only because of the position that he occupies that the statute imposes upon him a penalty for a failure of duty. In executing the statute, or in failing to execute it, he acts as the agent or the representative of the railroad company, and the doctrine of respondent superior necessarily applies."

If, as unquestionably was true under the circumstances shown by the testimony, it was a violation of law for Melton and his companions to be in the negro coach, and if, as seems to us to be true, appellant owed to appellee's wife the duty to see to it that the law was not so violated, then it follows, we think, that appellant was guilty of negligence in not removing Melton from the coach, if its agents and servants in charge of the train knew, or by the exercise of the care it owed to appellee's wife as a passenger they might have known, he was in the coach. Therefore we are of opinion the trial court did not err when he instructed the jury to that effect. It is clear Melton would not have been in the negro coach had appellant, in compliance with the requirement of the law, refused to admit him thereto, or, having unlawfully admitted, had removed him therefrom; and it is clear if Melton had not been in the coach appellee's wife would not have suffered the injury inflicted upon her. When it is remembered that the main object the Legislature had in view in enacting the separate coach law was to prevent "the frequent disturbances [upon railroad trains] arising between the two races, resulting often in serious injuries being inflicted by the one or the other" (Quinn v. Railway Co., 98 Ky. 231, 32 S.W. 742), we think it should be held that the trial court had a right to tell the jury, as he did in effect in the instructions complained of, that appellant should have anticipated the consequences which resulted to appellee's wife from its failure to comply with the law.

"Where the conductor or those managing the train," said the court in the case cited above, "knows that one is in the wrong car, it is his duty to expel him, and, by consenting to his remaining, the company becomes responsible for his conduct so long as he does remain."

We do not think the conclusions we have reached are in conflict with those reached in the cases cited by appellant. The point decided in Railway Co. v. Brown, 158 S.W. 259, was that it was not a violation of the separate coach law for a city marshal in the discharge of his official duties to go into a negro coach within the city limits. The point decided in Norwood v. Railway Co., 12 Tex. Civ. App. 560, 34 S.W. 180, was that a negro passenger who failed to show that he was thereby damaged was not entitled to recover against a railroad company because of its failure to provide for his color a coach "equal in all points of comforts and convenience" to the one provided for the white passengers. In Segal v. Railway Co., 35 Tex. Civ. App. 517, 80 S.W. 233, the plaintiff, a white woman, while a passenger in a coach provided for white persons, was assaulted by a negro. The negro was not a passenger, and the court properly, we think, held that the separate coach law was inapplicable to the case. In Prokop v. Railway Co., 34 Tex. Civ. App. 520, 79 S.W. 101, the plaintiff, a white woman and a passenger, while in the waiting room of the defendant's depot, was asasulted by a negro. The point decided was that the failure of the railway company to have the waiting room lighted was not the proximate cause of the injury to the plaintiff. In Railway Co. v. Smith, 133 S.W. 695, where the plaintiff, a woman, while in the waiting room of the defendant's depot was injured by boys engaged in a scuffle, it was held, on the authority of the Prokop and Segal Cases, that the absence of the defendant's station agent from the depot at the time the accident occurred was not the proximate cause of the injury to the plaintiff.

What has been said disposes of all the assignments in appellant's brief, except the fourth, in which complaint is made of the action of the trial court in overruling an objection thereto and in admitting as evidence certain testimony of the witness John Jackson. As the bill of exceptions taken to the ruling made does not appear to have been approved by the court, his action cannot be reviewed here. Railway Co. v. Crump, 110 S.W. 1013.

The judgment is affirmed.

Associate Justice HODGES thinks the charge complained of was erroneous and dissents from the conclusion reached. He is of the opinion the judgment should be reversed.